Lyles v. State

• Decision Date: 12 April 1905
• Parties: LYLES v. STATE.
• Court: Texas Court of Criminal Appeals

86 S.W. 763

LYLES v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1905.

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

William Lyles was convicted of murder, and he appeals. Reversed.

Brockman & Kahn and E. T. Branch, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was charged with murder, was convicted, and his punishment fixed at imprisonment in the penitentiary for a term of five years; hence this appeal. The verdict of the jury fails to find the degree of murder, and, under the authorities, the judgment must be reversed on this account. Brooks v. State (Tex. Cr. App.) 60 S. W. 53; Wooldridge v. State, 13 Tex. App. 444, 44 Am. Rep. 708. However, there are some other questions presented, which we will discuss briefly.

Appellant objected to the witness Karnes stating: That he was about 200 yards from where he heard the shot fired which evidently killed deceased. At that point he saw the team of deceased standing in the road. He also saw deceased lying beside the road by the wagon, and he got out of the wagon; being then about 100 yards from deceased, and about 50 yards from defendant. Defendant threw a double-barrel shotgun down on him, and told him to get back, and, if he went there (meaning to where deceased was), he would shoot him. This was objected to on the ground that it was not a part of the res gestæ. It occurs to us it was sufficiently connected with the offense to be admissible as a part of the res gestæ.

However, we do not believe that that portion of the testimony presented in appellant's bill of exceptions No. 3, as to witness going home and changing his horse, and then procuring a physician and bringing him out to Mrs. Wright's, was admissible. Still we fail to see any particular prejudice from this character of testimony.

Appellant has a bill of exceptions to a portion of the dying declaration, at the beginning, to wit: "I, William Leben, believing that I am going to die of the gunshot wound inflicted on me by a gun in the hand of William Lyles, make this, my dying statement." This is shown to be not in the statement or dying declaration of deceased. However, the main fact to be proved in such case is that the declarant was, at the time of making the statement, conscious of approaching death, and realized he had no chance of recovery. This fact sufficiently appears from the record, and the preliminary statement above copied would not constitute reversible error. Besides, we would observe that the dying declaration is not set out in any of the bills of exception, and the same may have contained expressions of similar import. At any rate, if on another trial...